Maintenance for life?

Maintenance for life?

Section 23 (1)(a) of the Matrimonial Causes Act 1973 (MCA 1973) gives the court the power to order periodical payments. Recent decisions of the High Court and Court of Appeal have focused on such orders, considering whether spousal maintenance orders should be made, for how much, and for how long.

In SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam) Mostyn J considered the correct approach to periodical payments orders. He found that (save in a wholly exceptional case) maintenance orders can only be made to meet needs. MCA 1973, ss 25A(1)-(2) stipulate that spousal maintenance should be terminated as soon as is ‘just and reasonable’. A maintenance term should be considered unless the payee would be ‘unable to adjust without undue hardship’ to the ending of the payments. This suggests that parliament accepts ‘a degree of not undue hardship’ in making the adjustment. Unless undue hardship would likely be experienced the court ought to provide an end date to a maintenance order.

Assuming that there are ‘hard needs’ which have to be met by a spousal maintenance order, in SS v NS Mostyn J considered the questions: how much? and for how long?

How much?

Mostyn J approved of view in the Law Commission report Matrimonial Property, Needs and Agreements (Law Com No 343, 26 February 2014) that: ‘…the transition to independence, if possible, may mean that one party is not entitled to live for the rest of the parties’ joint lifetimes at the marital standard of living, unless he or she can afford to do so from his or her own resources’, remarking that it is a mistake to regard the marital standard of living as the lodestar, because:

  • as time passes how the parties lived in the marriage becomes increasingly irrelevant, and
  • too much emphasis on it imperils the prospects of eventual independence

How long?

Mostyn J found that the Holy Grail should be ‘where it is just and reasonable, an eventual termination and clean break’. He

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